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TMI Blog2015 (2) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned orders has been pointed out that any of the findings are perverse in its nature. Therefore, the findings of fact recorded by the Tribunal are based on appreciation of fact and the appeals deserve no further consideration, more particularly, in light of various case-laws cited at bar by learned advocate Mr.Shah for the respondent - Assessee on the scope of appeal under Section 260A of the Act. - Decided in favour of assessee. - Tax Appeal No. 429 of 2000, Tax Appeal No. 366 of 2001, Tax Appeal No. 367 of 2001 - - - Dated:- 3-2-2015 - Jayant Patel And S. H. Vora,JJ. For the Petitioner : Mrs. Mauna M. Bhatt, Advocate For the Respondent : Mr. MJ Shah For Mr JP Shah, Advocate JUDGMENT (Per : Honourable Mr. Justice S. H. Vora) 1. Since all the appeals arising out of common substantial question of law, they are heard together and disposed of by this common judgment. 2. As all the appeals involve same and identical facts and law except to the extent of the amount and assessment year, they are decided together by taking into consideration facts of Tax Appeal No.429 of 2000 as base in the matters. 3. The appellant - Revenue, being aggrieved by the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uiring the bunglow in Tulip-II Scheme, the said amount was added as the Assessee s income under Section 69 of the Act. 4.2. On appeal before the Commissioner of Income Tax (Appeals-II), Ahmedabad, the Commissioner of Income Tax dismissed the appeals preferred by the respondent - Assessee and, therefore, the respondent - Assessee preferred the above appeals before the Tribunal. 4.3. As can be seen from the order of the Tribunal while allowing the appeal preferred by the respondent of Tax Appeal No.429 of 2000, the Tribunal found that addition of on money in case of appellant - Assessee was unjustified in the following manner:- 7. We have careful through to the rival submissions of the parties. In consequence to the search, Desai Brothers and their associate concern through their partners clearly admitted that they received on money on sale of bungalow on project Tulip-I and Tulip-II. These concerns also surrendered ₹ 1.50 crores on account of on money as concealed income. Thus, as far as Desai Brothers are concerned, their own admission corroborated by disclosure made by them fully binds them, and therefore, there can be no challenge to the assessment of on money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 7.2. The Assessing Officer being fully aware of above principles and not rely on the admission made by Desai Brothers during the course of search in their premises or thereafter as also on the material subsequently collected in their assessment under the Income-tax Act bur tried to meet the requirement of law. He summoned Desai Brothers and recorded their statement in presence of the assessee/his representative and allowed an opportunity to cross examine them to bring the assessee. We have already referred to statement of Desai Brothers dated 07.10.1998 and extracted questions and answers given by them in the examination, cross examination and the re-examination. In the said cross-examination, Desai Brothers clearly admitted that value of bungalow sold to the assessee was agreed to be sold at ₹ 6,12,000/- as per allotment letter dated 27.05.1993. It is further admitted that possession of the building was delivered to the assessee on receipt of ₹ 6 lacs. Desai Brothers also admitted receipt of payment of ₹ 12,000/- besides ₹ 6 lacs as part of sale consideration. The answer to question No.6 is as under:- It is true that no additional amount has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Tulip-II Scheme. After relying upon the further examination of Shri Dilipkumar at the hand of Assessing Officer, it was found that the builders were not in a position to say whether any on money has been received from the Assessee in absence of any account maintained by them member-vise. According to her, the Tribunal has not considered further examination of the builder which was undertaken by the Assessing Officer after cross-examination of the said witness at the hand of respondent - Assessee. In support of her submissions, learned advocate Mrs.Bhatt relied upon the decision rendered in the case of M. Janardhana Rao V/s. Joint Commissioner of Income-Tax reported in 273 ITR 50 wherein, it is held that the tests for determining whether a substantial question of law is involved in an appeal are: (i) Whether directly or indirectly it affects substantial rights of the parties, or (ii) the question is of general public importance, or (iii) whether it is an open question in the sense that the issue is not settled by a pronouncement of the Supreme Court or the Privy Council or by the Federal Court, or (iv) the issue is not free from difficulty, or (v) it calls for a discussion f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration of the submissions made at bar, it would not be possible to uphold the contention of learned advocate Mrs.Bhatt appearing for the appellant - Revenue. The Tribunal gave elaborate reasonings to assail the order of the Commissioner of Income Tax (Appeals) and the Assessing Officer. Thus, the fact remains that the entire issue is based on factual aspects and the Tribunal by giving cogent reasons, came to the conclusion that addition of on money in case of respondent - Assessee is unjustified and accordingly, directed the addition of on money to be deleted. Learned advocate Mrs.Bhatt for the appellant - Revenue made a futile attempt to demonstrate before this Court that the findings of fact recorded by the Tribunal are perverse inasmuch as the Tribunal ought not to have overlooked further examination of witness - Mr.Desai undertaken by the Assessing Officer. In our opinion, this is nothing but an attempt to see that this Court undertakes an exercise to find out whether the Tribunal has committed any error in appreciating the evidence/facts while taking departure on the findings of fact recorded by the Assessing Officer. Needless to say that the first Appellate Court or the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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